4 year old sued for negligence

By Legal Eagle

Via the Obligations Discussion Group, I heard that a Manhattan judge has ruled that a four-year-old can be sued for negligence. Yes, seriously. The New York Times reports:

Citing cases dating back as far as 1928, a judge has ruled that a young girl accused of running down an elderly woman while racing a bicycle with training wheels on a Manhattan sidewalk two years ago can be sued for negligence.

The ruling by the judge, Justice Paul Wooten of State Supreme Court in Manhattan, did not find that the girl was liable, but merely permitted a lawsuit brought against her, another boy and their parents to move forward.

The suit that Justice Wooten allowed to proceed claims that in April 2009, Juliet Breitman and Jacob Kohn, who were both 4, were racing their bicycles, under the supervision of their mothers, Dana Breitman and Rachel Kohn, on the sidewalk of a building on East 52nd Street. At some point in the race, they struck an 87-year-old woman named Claire Menagh, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three months later of unrelated causes.

Her estate sued the children and their mothers, claiming they had acted negligently during the accident. In a response, Juliet’s lawyer, James P. Tyrie, argued that the girl was not “engaged in an adult activity” at the time of the accident — “She was riding her bicycle with training wheels under the supervision of her mother” — and was too young to be held liable for negligence.

The WSJ Law Blog noted the plaintiff’s response:

The plaintiff countered that “the child at bar is almost a year older, nearing her fifth birthday” and cited the Court of Appeal’s ruling in Camardo v. New York State Rys., 247 N.Y. 111 (1928), which noted that “[n]o rule of law fixes an arbitrary age at which a particular degree of care may be expected.”

The judge largely bought the plaintiff’s argument: “There are no exhibits containing evidence as to the defendant-movant’s lack of intelligence or maturity, nor are there any other mitigating factors apparent in the record that would indicate that another child of similar age and capacity under the circumstances could not have reasonably appreciated the danger of riding a bicycle into an elderly woman,” wrote Judge Wooten.

What is the plaintiff going to do if it establishes that the 4 year olds were negligent? Bankrupt them? Garnishee their bicycles and sell them off if they don’t pay damages? I’m a remedies girl, so I tend to ask myself, “If you sue this person, will you get a remedy which is worthwhile?” Sue the parents for negligent supervision, by all means, but it seems to me that suing the kids personally is outrageous and ridiculous.


  1. Posted October 30, 2010 at 8:53 am | Permalink

    Oh dear. It’s stuff like this that makes people take one look at lawyers and then say rude stuff about us.

    It’s all a bit Palsgraf, to be honest.

  2. TerjeP
    Posted October 30, 2010 at 9:07 am | Permalink

    My four year old is negligent all the time. Next time she does it I’m threatening to sue. We’ll see how that works out.

  3. Jeremy Gans
    Posted October 30, 2010 at 9:11 am | Permalink

    Apparently, the point is that American homeowners’ insurance includes personal liability of all householders.

  4. Anthony
    Posted October 30, 2010 at 9:22 am | Permalink

    Terje was probably joking, but the itt-bitty defendant’s duty is that of a reasonable 4 year old in the defendant’s position. So if Terje’s kid would have crashed her bike in to the old lady, and a reasonable 4 year old would have crashed their bike in to the old lady, then Mistress Breitman won’t be in breach of her duty and can live free of the stigma of being the world’s youngest bankrupt 🙂

    Remedies: I don’t know quite how American courts slice and dice equitable remedies for Tort, but I can think of any number of creative suggestions 🙂

  5. Oliver Townshend
    Posted October 30, 2010 at 9:34 am | Permalink

    I doubt the damages are much, given she died 3 months later. And how do they collect from the children, how do they enforce a costs order? This is dumb.

  6. Posted October 30, 2010 at 9:38 am | Permalink

    question: was the mother riding a bike, or running beside the girl, or was /walking/ at a pace, and close enough, to actually be take control of the bike, reaching out and halting it if necessary?

    After all, the mother should have been able to stop the kid riding herself into danger, such as into traffic, into a pole, etc.

  7. Oliver Townshend
    Posted October 30, 2010 at 11:26 am | Permalink

    But Dave, they could sue the mother if they wanted to and they aren’t.

  8. Miss Candy
    Posted October 30, 2010 at 12:57 pm | Permalink

    The question from a remedies point of view is whether the kids had insurance. In the US, anything’s possible!

  9. Posted October 30, 2010 at 2:10 pm | Permalink

    @ O Townshend

    As I read it (only the extracts in this post) the mothers are also being sued.

    Actually, this case isn’t so much different from the case where the High Court not so long ago held that the standard of care expected of a learner driver was no less than that expected of an ordinary driver: Imbree v McNeilly; McNeilly v Imbree [2008] HCA 40.

    I wouldn’t be surprised if the child did not have the benefit of some household insurance, and moreover there may be procedural reasons why it was necessary to sue all available defendants.

    So far as enforcement is concerned, quite apart from insurance, who here knows how long you have to enforce a judgment in New York? (Or at what age you can declare bankruptcy to avoid liability under a judgment?)

  10. Posted October 30, 2010 at 9:30 pm | Permalink

    The reason for suing the kid is because the kid is covered by the insurance and to prevent the parents, who are probably covered by the same insurance policy, saying (as you almost have) “We did the best we could to control our kid, but shit happens, and you didn’t sue the kid.”

    Suing a 4yo won’t concern the 4yo in the slightest unless the 4yo’s parents are stupid enough to say something about it to them.

    I’m not too keen, though, about your attitude “sh*t happens” about young children causing injury to elderly people. There should probably be a tort of strict liability analogous to the old “cattle trespass” but called “toddler trespass” to cover such mishaps. That would presumably sheet things home to some responsible (or not) adult.

  11. Posted October 30, 2010 at 9:49 pm | Permalink

    Perhaps I should explain for lay persons, that when I say “the parents, who are probably covered by the same insurance policy” I actually mean the insurance company.

    And yes, I know the kid was older than a toddler, but I couldn’t resist the alliteration and a certain rhythmic ring to my newly nominate tort.

  12. Posted October 30, 2010 at 10:49 pm | Permalink

    That’s crazy. Sue the parents. I’m not sure what you can gain by suing a 4 year old, other than international outrage.

  13. Posted October 31, 2010 at 3:50 am | Permalink

    I’m not too keen, though, about your attitude “sh*t happens” about young children causing injury to elderly people. There should probably be a tort of strict liability analogous to the old “cattle trespass” but called “toddler trespass” to cover such mishaps. That would presumably sheet things home to some responsible (or not) adult.

    I think I agree with this. My agreement is borne of watching parents of young children (mainly mothers, but not a few fathers as well) behave as though the world owes them a living simply because they have reproduced. As I have made clear elsewhere, I have no problem with systems of income splitting and cheap childcare to reward parenting (as is done in France), but I’m afraid that the act of reproducing does not buy one the right to behave as though the rest of civilisation does not exist.

    Parents have been sucking it up since we swung down from the trees. They can keep sucking it up, as far as I’m concerned. No-one chooses to become elderly or disabled. People do choose whether or not to become parents.

    There is a difference.

  14. Frank Drebin
    Posted October 31, 2010 at 7:00 am | Permalink

    The liability of children for committing negligent acts has been long established in Australian and English law. Have a look at McHale v Watson [1966] HCA 13. The standard of care which a child must exercise to discharge the duty will be that which a child of similar age, experience and development would exercise. A child’s parent may also be liable for the child’s tort where his or her supervision of the child is inadequate; Smith v Leurs [1945] HCA 27.

    I can see the financial sense in suing the child if the child’s conduct is covered by an insurance policy, or if the child has a trust fund or other source of funds capable of satisfying the judgment. Otherwise obtaining and enforcing judgment against an impecunious child would be a waste of time.

  15. Posted October 31, 2010 at 10:58 am | Permalink

    LE, I’m not sure I share SL’s libertarian zeal on this point. Of course it is precisely because toddlers are so difficult to control that I am proposing a strict liability tort.

  16. Frank Drebin
    Posted October 31, 2010 at 11:13 am | Permalink

    I know of some American cases where very young children were held to be liable for harm they caused. In Ellis v D’Angelo (1953) a 4 year old was liable for harm caused when he pushed his babysitter down. In Garratt v Dailey (1955) a 5 year old was liable for injury caused by pulling away a chair as an adult prepared to sit on it. In Seaburg v Williams (1958) a 5 year old was liable for damage caused by starting a fire in his neighbour’s garage. The children were found to have the foresight to predict the consequences of their actions, although at such a young age, you’d question (as LE does) whether they understood ideas of cause and effect. Perhaps an intelligent 4 or 5 year old would be a borderline case, but eventually you’d surely reach an age where the child is so young that the capacity for such foresight would be impossible to prove.

  17. Posted October 31, 2010 at 2:03 pm | Permalink

    When I was five and newly started at school I pulled a chair away from a child who was about to sit down – she was absorbed in reading a book and of course landed on the floor. At the time, as I remember, it was like a clever demonstration of cause and effect – it certainly didn’t occur to me that she could be hurt, nor did I take any particular pleasure in her falling. As I remember. I don’t think a 4-yr old does understand the longer-term effects of their spontaneous actions, especially in this case where the children were racing in what seems to have been an inappropriate place. They would have been excited and focused on themselves. Their mothers are clearly responsible.

  18. Posted November 1, 2010 at 7:21 am | Permalink

    Doli Incapax anyone? By all means look into the liability of the parent, but if a kid is 6 years short of being able to form a view as to right and wrong, how are they meant to be able to divine (because this is what tort judges tend to expect of people, restrospectively, with 7 years worth of discovery and amended pleadings in front of them) the existence of a duty of care, the line they will cross to breach it, the foreseeability of damage etc?

    Child on witness stand: “No, your honour, no idea if setting granny on fire is good or bad. …. Oh, of COURSE I would never take steps that had the potential to harm someone under second limb wagon wheel principles, I’m all over the Eric Carle version of Alcock and the Chief Constable of Sth Yorkshire..”

    I blame the judge. Seriously, this must be the idiot from that famous email where the lawyer allegedly asked if the patient with its brain removed might still be alive. The answer, now, is “Yes, they may be administering justice in the US..”

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